['Recruiting and hiring']
['Negligent Hiring / Retention']
06/11/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Kansas, an employer/former employer or designee may disclose information to a prospective employer information about an employee/former employee with “qualified” immunity from liability. “Absolute” immunity from liability is provided for disclosures of the following information:
- Dates of employment,
- Pay,
- Job description,
- Job duties, and
- Wage history.
“Absolute” immunity from liability is provided for written disclosures (upon written request of a prospective employer) of the following information:
- Written employee evaluations prior to the employee’s leaving employment with the employer. The employee/former employer must be given a copy upon request.
- Reason(s) for separation and whether the employee left voluntarily or involuntarily.
An employer that discharges an employee may not prevent or try to prevent that employee from obtaining employment, except to give reason(s) for separation, upon request. Agricultural employers may not blacklist a person in order to encourage/discourage any sort of membership to any entity.
Upon request, terminated employees must receive a letter containing the dates of employment, job classification, and wage rate of the employee.
Arrest record inquiries
In Kansas, an employer may not ask an applicant for criminal history records to determine employment fitness, without a signed release from the applicant. An employer may base an employment decision on a criminal history record, if it bears upon the safety and well-being of customers and employees or the trustworthiness of the applicant or employee. If a person has an expunged arrest record, that person may state that he/she was never arrested for that crime, except for disclosures listed in Kansas Statute 21-4619(f) (which includes, but is not limited to applications for detective agencies, Kansas Lottery, Kansas Racing Commission, State Gaming Agency, Tribal Gaming Commission, brokerages, and investment advisors).
However, “Guidelines on Equal Employment Practices: Preventing Discrimination in Hiring” published by the Kansas Human Rights Commission states that it is not acceptable for an employer to ask an applicant about arrests or the number of arrests. This differs from the EEOC’s Notice N-915-061 says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In Kansas, an employer may not ask an applicant for criminal history records to determine employment fitness, without a signed release from the applicant. An employer may base an employment decision on a criminal history record, if it bears upon the safety and well-being of customers and employees or the trustworthiness of the applicant or employee. If a person has an expunged conviction record, that person may state that he/she was never arrested for that crime, except for disclosures listed in Kansas Statute 21-4619(f) (which includes, but is not limited to applications for detective agencies, Kansas Lottery, Kansas Racing Commission, State Gaming Agency, Tribal Gaming Commission, brokerages, and investment advisors).
However, “Guidelines on Equal Employment Practices: Preventing Discrimination in Hiring” published by the Kansas Human Rights Commission states that an employer may ask an applicant about a conviction record if it is “substantially related” to the applicant’s ability to perform the duties of the job. This differs somewhat from the EEOC’s Notice N-915 which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
The nature and gravity of the offense or offenses;
The time that has passed since the conviction and/or completion of the sentence; and
The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
Kansas Human Rights Commission
Conviction record inquiries
Kansas Human Rights Commission
Regulations
Employer immunity from disclosure claims
Kansas Statute 44-117, Employer not to prevent discharged employee from obtaining employment
Kansas Statute 44-119a, Employer immunity from liability and suit for disclosure of employment information
Kansas Statute 44-808, Unlawful acts of employer
Kansas Statute 44-828, Prohibited practices
Arrest record inquiries
Kansas Statute 12-4516, Expungement of certain convictions, arrest records and diversion agreements
Kansas Statute 12-4516b, Expungement of certain convictions, arrest records and diversion agreements
Kansas Statute 22-4710, Unlawful for employers to require certain acts; exceptions; penalties
Conviction record inquiries
Kansas Statute 12-4516, Expungement of certain convictions, arrest records and diversion agreements
Kansas Statute 12-4516b, Expungement of certain convictions, arrest records and diversion agreements
Kansas Statute 22-4710, Unlawful for employers to require certain acts; exceptions; penalties
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.